Lack of privacy and data protection laws in India - in spite of years of debate and misgivings over Aadhaar biometrics and Supreme Court's order declaring privacy a fundamental right - heightens fear of further enabling a surveillance state through DNA profiling of citizens
The first attempt to regulate use and application of DNA technology was made in 2003 with the constitution of a DNA Profiling Advisory Committee. A draft bill was accordingly prepared. Later, in 2012 another expert committee was set up to discuss privacy related issues and the draft was revised.
This was then examined by the Law Commission of India, which gave it a go ahead in its July 2017 report, brushing aside too much concern on privacy saying that whether it was a fundamental right "is a matter of academic debate" and pending before the Supreme Court. A month later, in August 2017, a nine-member bench of the apex court unanimously declared privacy a fundamental right under Article 21 of the Constitution.
The DNA Technology (Use and Application) Bill of 2019 was introduced in and passed by the Lok Sabha in January this year, but lapsed before it could be taken up by the Rajya Sabha. It was reintroduced in July 2019 and is now pending in the Lok Sabha.
What the Bill is all about
The Bill seeks to regulate use and application of DNA technology for the purposes of only establishing identity of certain categories of persons, including victims, offenders, suspects, under trials, missing persons and unknown deceased persons and related matters.
It seeks to regulate laboratories for DNA testing and analysis by providing for their accreditation, establish national and regional DNA Data Banks to store and maintain DNA profiles and a DNA Regulatory Board for their governance.
DNA Regulatory Board: The Board would be headed by a secretary level officer and comprise experts in the fields of biological sciences, forensic and legal matters and representatives from various investigating and police agencies like the DG of NIA, Director of CBI, DGP of a state on rotational basis and National Human Rights Commission.
The primary functions of the Board would be: (a) advising governments on all issues relating to establishing DNA labs, data banks, laying down guidelines, standards and procedures for functioning of these banks and labs; (b) granting accreditation to DNA labs; (c) assisting investigating agencies within the country and outside in criminal matters and (d) making recommendations for privacy protection in access, use and analysis of DNA samples and provide for their security and confidentiality.
No court would have jurisdiction to entertain any suit or proceeding in any matter for which the Board is empowered.
Collection and use of DNA data: The DNA testing is allowed only for facilitating identification of a person in connection with matters listed in the Schedule of the Bill, such as: (a) criminal offences under the Indian Penal Code where DNA testing is useful for investigating offences; (b) offences under special laws - relating to immoral trafficking, medical termination of pregnancy, sex selection, domestic violence, civil rights violation, atrocities against the SCs and STs and the Motor Vehicles Act; (c) civil matters like parental disputes, pedigree issues, assisted reproductive technologies (ART), transplantation of human organs, immigration/emigration and establishing individual identity and (d) other cases like medical negligence, identifying unidentified human remains and abandoned children etc.
Consent for DNA sample: No consent would be needed for collecting bodily substances for DNA profiling for offences punishable with more than seven years of imprisonment or death penalty.
But written consent would be mandatory for offences with lesser punishments and in case a person is victim or relative of a missing person. In case of a minor or a disabled person, written consent of parent or guardian would be required. In case consent is refused, a Magistrate could be approached.
Removal of profile: The Bill provides for removal of DNA profile, through written request, for a person who is neither an offender nor a suspect but whose DNA profile is entered in the crime scene index or missing persons' index of DNA Data Bank.
Offences and penalty: Offences like unauthorised disclosure, obtaining, use and access of DNA samples or results would attract imprisonment up to three years with fine up to Rs 1 lakh, while destruction, alteration, contamination or tampering with biological evidence would attract five years of imprisonment and fine up to Rs 2 lakh.
Why the Bill?
The Bill's Statement of Objects and Reasons explains that DNA technology has the potential of wide application in the justice delivery systems - both criminal and civil. In criminal cases, it helps in investigation of crimes through biological evidence, including semen evidence in rape cases, blood evidence in murder cases, saliva evidence in identification of source of anonymous threat letters etc. In civil cases, it helps in investigation relating to victims of disasters like cyclone, air crash etc.
Regulation is also required to check misuse or improper use of DNA analysis which can harm individuals or society.
Spectre of a surveillance state with no protection for privacy and data
Delhi-based forensic medicine and legal expert Dr Gaurav Aggarwal has serious misgivings about the Bill. He sees an Aadhaar biometrics-like anxiety building up over DNA profiling which he foresees expanding over time to cover all aspects of life of all citizens. "The intention (in regulating DNA technology) may be good but we are moving towards a surveillance state", he cautions.
For one, he says, there is no need for DNA profiling in civil cases. Finger prints would work not just fine but better than DNA profiling for identification purpose as the latter would be same for identical twins but not the former. Secondly, there is no need for storing DNA "sample" as DNA "profile" is all that is needed for identification. Once DNA profile is ready, the sample should be destroyed as its continued storage could be misused.
Third, collection of DNA samples of "suspects" should not be allowed. He says globally DNA samples are collected only in very serious offences and so should be the case in India, not for suspects of just any crime. His fourth concern is that DNA data is amenable to hacking and that no digital data (once created) is really ever gets deleted from hard discs and can be retrieved.
Fifth, Dr Aggarwal says, India first needs laws to protect privacy and personal data, especially after the Supreme Court recognised privacy as a fundamental right under Article 21. He issues a clear warning: "Lack of such laws, coupled with lack of ethics, makes India very vulnerable to misuse of DNA samples and profiles."
Whether the law makers pay heed to such concerns and warning would be clear once the Bill is taken up for scrutiny by a Parliamentary panel, as the chairman of Rajya Sabha Venkaiah Naidu has promised to the opposition parties.